DATE: 03-11-91
CITATION: VAOPGCPREC 22-91
Vet. Aff. Op. Gen. Couns. Prec. 22-91
TEXT:
SUBJECT:Autopsy on Veteran who dies outside VA Facility whilein Post- Hospital Care Status.
(This opinion, previously issuedas Opinion of the General Counsel 13-71, dated May 26, 1971, isreissued as a Precedent Opinion pursuant to 38 C.F.R. §§2.6(e)(9) and 14.507. The text of the opinion remains unchangedfrom the original except for certain format and clerical changesnecessitated by the aforementioned regulatory provisions.)
To: Chief Medical Director
QUESTIONS PRESENTED:
(1) Whether VA may perform an autopsy ona veteran who dies outside of the VA facility while undergoingpost-hospital care under the provisions of 38 U.S.C. § 612(f)(2),when the cause of death is unknown or uncertain and the resultsof an autopsy may enable VA to complete its hospital records,assuming proper authorization by the next of kin is obtainable;and
(2) If so, may the same conclusion be applied in the case ofa veteran whose post- hospital care outpatient treatment status arises from other statutory authority.
COMMENTS:
In Op.G.C. 2-61, January 12, 1961, this office concluded that a veteran who died while in post-hospital care status was not within the provisions of 38 U.S.C. § 903 andtherefore transportation costs of the body were not payable. DM& S has applied this conclusion to other situations but now finds that significant information is lacking in certain cases,particularly those involving heart pacemaker implantation, andasks that the matter be reconsidered.
In Op.Sol. 210-51, May 3, 1951, in an opinion approved by theAdministrator, the Solicitor stated:
"7. The laws authorizing the VA to furnish hospital and medicaltreatment and domiciliary care to veterans (Section 6, Public No.2, 73d Congress, as amended by Public No. 312, 74th Congress,Section 706, Title 38 U.S.C.A.) authorize the Administrator ofVeterans Affairs 'under such limitations as he may prescribe, andwithin the limits of existing Veterans' Administrationfacilities,' to furnish medical and hospital treatment anddomiciliary care to the classes of veterans therein enumerated.
"8. Public Law 293, 79th Congress (38 U.S.C. § 15), establishes in the VA a Department of Medicine and Surgery, the functions ofwhich 'shall be those necessary for a complete medical andhospital service to be prescribed by the Administrator ofVeterans' Affairs.'
"9. In view of the provision in Public Law 312, 74th Congress,quoted in paragraph 7, it is my opinion that within reasonablelimits the Administrator has the legal power to promulgate aregulation authorizing autopsies on the bodies of patients who shall have died in a VA facility if he concludes that such actionis necessary for purposes of the VA including increase of medicalknowledge. If such regulation is promulgated, obviously it oughtto prescribe reasonable conditions, including denial of autopsyif the patient in his life, or his surviving spouse, if any, ornext of kin, expresses objection or declines to consent; and inall cases after notice to such spouse or, if none, the next ofkin."
Pursuant thereto, there was issued what is now VA Regulation6155. VAR 6155 provides:
"(A) Except as provided in this paragraph, no autopsy will beperformed by the VA unless there is no known surviving spouse orknown next of kin;or without the consent of the surviving spouse or, in a proper case, the next of kin, unless the patient or domiciled person was abandoned by the spouse, if any, or, ifno spouse, by the next of kin for a period of not less than 6months next preceding his death. Where no inquiry has been made for or in regard to the decedent for a period of 6 months next preceding his death, he shall be deemed to have been abandoned.
"(B) If there is no known surviving spouse or known next ofkin, or if the decedent shall have been abandoned or if therequest is sent and the spouse or, in proper cases, the next ofkin fails to reply within the reasonable time stated in suchrequest of the VA for permission to perform the autopsy, theDirector is hereby authorized to cause an autopsy to be performedif in his descretion [sic] he concludes that such autopsy is reasonablyrequired for any necessary purpose of the VA, including thecompletion of official records and advancement of medicalknowledge.
"(C) If it is suspected that death resulted from crime or thecause of death is unknown and if the United States has exclusivejurisdiction over the area where the body is found, the Directorof the hospital or center will inform the appropriate ChiefAttorney of the known facts concerning the death. Thereupon theChief Attorney will transmit all such information to the UnitedStates Attorney for such action as he deems appropriate and will inquire whether the United States Attorney objects to an autopsyif otherwise it be appropriate. If the United States Attorneyhas no objection, the procedure as to autopsy will be the same asif the death had not been reported to him.
"(D) If the United States does not have exclusive jurisdictionover the area where the body is found, the local coroner will beinformed. If the local coroner declines to assume jurisdiction,the procedure will be the same as is provided in subparagraph (C)of this paragraph. If a Federal crime is indicated by the evidence, the procedure of subparagraph (C) of this paragraph will also be followed.
"(E) The laws of the decedent's domicile are determinative as to whether the spouse or the next of kin is the proper person togrant permission to perform an autopsy and of the question as tothe order of preference among such persons. Usually the spouseis first entitled, except in some situations of separation; followed by children, parents, brothers and sisters, etc. Whenthe next of kin as defined by the laws of decedent's domicileconsists of a number of persons as children, parents, brothersand sisters, etc., permission to perform an autopsy may beaccepted when granted by the person in the appropriate class who assumes the right and duty of burial."
M-1, Part I, paragraph 14.03 provides in part:
"a. The purpose of an autopsy is to contribute to knowledge ofthe causes and cures of disease and disability, and in some casesto satisfy medico- legal requirements as to the cause of death.These objectives can be met only by the participation ofqualified physicians. Accordingly, the request for permission to
perform an autopsy normally will be made by a physician who isfully qualified and prepared to explain the purposes and thereasons for the need to perform one. The physician responsiblefor care of the patient at the time of death is the one mostsuitable and will be designated for this purpose wheneverpossible. When a physician is not available, the Chief ofMedical Administration, or his designee, may seek the requiredpermission. In no event will chaplains be used to securepermission for autopsies. Chaplains may and should, however,
provide advice and counsel to relatives when it is sought by therelatives.
"b. The provisions of VA Regulation 6155 and DM & S Manual M-2,part VI, chapter 8, apply ..."
Similarly, M-2, part VI, chapter 8, contains the following:
"8.01 Statement of Policy
"An attempt will be made to procure legal permission forautopsies on all patients who die in VA hospitals, and a protocolwill be prepared.
"8.02 Preparation of Autopsy Protocol
"Where legal permission can be secured, an autopsy will be
performed on all patients who die in VA hospitals, and a protocol
will be prepared and disposed of as follows: ..."
Several observations can reasonably be drawn from theforegoing. At the outset, it would appear that there is no legalprohibition to the performance of an autopsy under the conditionsstated, assuming such action is not contrary to applicable Statelaw; see Op.GC 3-70. If it is administratively determined toimplement this conclusion, it would appear desirable that theregulations and manual provisions be amended to reflect such policy. In order for VA to perform an autopsy, currentdirectives impliedly require that the individual have a status ofVA patient or be a domiciled person. A veteran discharged fromthe hospital and placed in a post-hospital care status does notsatisfy this requirement. Further, we construe VAR 6155(D) asrelating to the type and extent of jurisdiction of which thefacility is located, rather than to the status of the individualwho is deceased and, therefore, do not consider the subject areaas pre-empted thereby.
It is to be noted that the foregoing conclusion authorizing autopsy under specific circumstances is premised on theresponsibility of the Administrator to furnish care and treatmentto veterans, and the relationship between the veteran and the VA arising therefrom (which continues while care and treatment arestill being furnished), rather than on the language of section612(f)(2). Accordingly, this conclusion is for application undersimilar post-hospital care outpatient treatment circumstances,regardless of the source of the authority for the relationship;for example, service-connected veterans under section 612(a),Spanish-American War or Indian wars veterans under section612(e), and those veterans whose eligibility for medical servicesarises under section 612(g).
In addition to the question of whether VA has the authority to perform autopsy under the conditions stated (which wasanswered in the affirmative, supra), there is the relatedquestion of authority of VA to pay for the transportation of thebody, when such is necessary in order to perform the autopsy. Inan unpublished opinion of November 7, 1966, we stated:
"6. 'Treatment' is a broad term covering all steps taken toeffect a cure of an injury or disease, and includes examinationand diagnosis as well as the application of remedies (70 CJS 817;Kirschner v. Equitable Life Assurance Soc., 284 NYS 506). Theword 'treatment,' in its common and accepted sense, is the meansemployed to cure a disease, and the management of diseases or diseased patients (70 CJS 817; Goldwater v. Citizens CasualtyCo. of New York, 7 NYS2d 242). Knowledge obtained fromautopsies, and other pathological diagnostic studies, is used notonly to obtain a correct final diagnosis with respect to theinjury or disease of the deceased veteran, but is also used tocure or manage diseases of future veteran-patients. Viewed inthis light, it is my opinion that the performance of suchprocedures may be considered to be within the broad meaning ofthe term 'treatment,' as used in 38 U.S.C. § 4116.
"7. Accordingly, it is my opinion that any action filed in astate court against your medical personnel, as a result ofautopsies, or other pathological diagnostic studies, performed by them while exercising their duties in or for the Department ofMedicine and Surgery, may be removed to the applicable FederalDistrict Court (under the provisions of 38 U.S.C. § 4116), andtreated as an action against the United States under the FederalTort Claims Act."
In my opinion, therefore, when an autopsy is performed asreasonably required for any necessary purpose of the VA,transportation of the body for such an autopsy could beaccomplished under the provisions of 38 U.S.C. § 213. To theextent that an unpublished opinion of this office dated March 14,1966, is not in accord with this holding, it is no longer to beconsidered controlling.
HELD:
(1) There is authority to perform an autopsy on a veteranwho dies outside the VA facility while receiving post-hospitaltreatment under 38 U.S.C. § 612(f)(2) when the cause of death is unknown or uncertain, if it is concluded that such autopsy isreasonably required for any necessary purpose of the VA,including the completion of official records and advancement ofmedical practice, and when proper authorization of the next ofkin is obtained. Such authority encompasses the furnishing oftransportation of the body. If a research purpose is to beaccomplished, both the transportation of the remains and thecosts of autopsy are properly chargeable to the appropriation for research. (2) The conclusion in (1), supra, is for applicationunder similar post-hospital care outpatient treatmentcircumstances regardless of the source of authority for the
relationship; e.g., service-connected veterans under section612(a), Spanish-American War or Indian wars veterans undersection 612(e), and those veterans whose eligibility for medical services arises under section 612(g).
VETERANS ADMINISTRATION GENERAL COUNSEL
Vet. Aff. Op. Gen. Couns. Prec. 22-91